Updating the Latest Star-Studded Fair-Use Flap, Starring Yoko and Ben

NEW YORK — The decision in the Harry Potter case might well still be a few weeks coming, but in the meantime we’ve got another cool copyright case to keep us busy. The Law Blog just returned from New York State Supreme Court — a/k/a/ New York’s trial court, a/k/a the “Law & Order” court — where we sat in on a preliminary injunction hearing in the case of EMI Records v. Premise Media, the film production company that made “Expelled,” starring Ben Stein.

Before we get to the hearing, let’s catch up: In the film, Stein (Columbia, ’66; Yale law, ’70), a journalist and actor (”Bueller? Bueller?”), affects a persona akin to a conservative version of Michael Moore (”Sicko”). The film tries to make the point that American academia discriminates against people who espouse “intelligent design” theory — an alternative to evolution that would allow for the participation of a supernatural force in critical biological processes.

In the course of ridiculing what they see as an academic world increasingly dominated by secular views, the filmmakers use a 15 second clip of John Lennon’s song “Imagine” (“Nothing to kill or die for/And no religion too”). The purpose of using the clip, according to Premise’s lawyer, Stanford’s Anthony Falzone, who’s also representing the defendant in Harry Potter, is to criticize the song’s “overtly anti-religious message” as “dangerously naive” — therefore, fair use applies. (Find past LB coverage of the case here.)

Yoko Ono and the Lennon estate disapprove and are suing Premise in federal court. (Here’s the complaint. We hope to get a transcript of that PI hearing, which took place yesterday, soon.) Simultaneously, EMI, which says it owns the song recording — i.e. Lennon’s recorded performance, as distinct from the musical composition — is suing Premise in NY state court. Among other things, EMI claims that by using the song, Premise is harming EMI’s ability to license “Imagine,” which has only been licensed in one film, “The Killing Fields.”

Lawyers from both sides have declined to comment, but Columbia copyright guru Tim Wu told us this: “I don’t think this is a hard case; nor a close case. Playing 15 seconds of a song to criticize it is as fair as fair use gets. With respect to Yoko Ono: if this case isn’t fair use, then copyright law has become censorship law.”

But in the state court PI hearing this morning, Judge Richard Lowe wasn’t nearly as convinced as Professor Wu. Judge Lowe asked Falzone why it was necessary to use Lennon’s actual performance of the song, rather than, say, having Stein say the lyrics himself or flashing the lyrics on the screen. To this, Falzone gave what we thought was a compelling and novel reply. Lennon’s performance, said Falzone, triggers a specific emotional response in the viewer’s mind — i.e. “Maybe Lennon’s right; maybe the world would be better off without religion” — and it’s that response that the film, and its use of “Imagine,” seeks to criticize.

Judge Lowe seemed skeptical, and decided to stay the original TRO pending his ruling, which means that “Expelled,” currently playing in theaters around the country, cannot be reproduced or otherwise distributed.

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The Law Blog covers the legal arena’s hot cases, emerging trends and big personalities. It’s brought to you by lead writer Jacob Gershman with contributions from across The Wall Street Journal’s staff. Jacob comes here after more than half a decade covering the bare-knuckle politics of New York State. His inside-the-room reporting left him steeped in legal and regulatory issues that continue to grab headlines.

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